Morris Glasser & Son, Inc. v. Jonwal Construction Co.

186 Misc. 253, 60 N.Y.S.2d 25, 1946 N.Y. Misc. LEXIS 1814

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 18, 1946
• Status: Published

Opinion

Memorandum Per Curiam.

Plaintiff cannot recover for the alleged extra work upon the alleged oral contract relied on or upon the claim that the written contract was modified by the oral agreement. Paragraph “ 9 ” of the agreement expressly provides that such a claim may not be made unless it is in writing and signed by the defendant; the alleged oral modification is, therefore, ineffective. (See Real Property Law, § 282, subd. 1; Personal Property Law, § 33-c. ) Also, the architect’s decision that the alleged extra work is not such but is included by the provisions of the specifications is conclusive; further, there is no proof of damage. The defendant, admittedly, owes plaintiff a balance of $5 due on other work.

The judgment should be modified by reducing plaintiff’s recovery to the sum of $5, with costs, and as modified, affirmed, with $25 costs to appellant to be set off against plaintiff’s judgment.

Hammer, McLaughlin and Eder, JJ., concur.

Judgment modified, etc.